The plaintiff municipality brought a motion for an interlocutory mandatory order requiring the defendants to remove a berm constructed on their property adjacent to a municipal road.
The municipality argued the berm caused flooding in the road's drainage ditches, creating safety hazards and potential damage to the pavement structure, and blocked water flow to a provincially significant wetland.
The defendants claimed the flooding was caused by the municipality's own ditch maintenance work.
The court preferred the municipality's expert evidence, finding the berm caused the flooding and was located within the wetland setback in breach of conservation regulations.
The court held that the municipal ditch formed part of the 'highway' under the Municipal Act, 2001, and granted a statutory injunction and an injunction for public nuisance, ordering the defendants to remove the berm.
